Jack Goldsmith

Senior Fellow
Biography: 

Jack Goldsmith is a senior fellow at the Hoover Institution and the Henry L. Shattuck Professor of Law at Harvard University. From 2003 to 2004, he served as the assistant attorney general, Office of Legal Counsel; from 2002 to 2003 he served as the special counsel to the general counsel of the Department of Defense. Goldsmith also taught at the University of Chicago Law School from 1997 to 2002 and at the University of Virginia Law School from 1994 to 1997.

In his academic work, Goldsmith has written widely on issues related to national security law, presidential power, international law, and Internet regulation. His books include Power and Constraint: The Accountable Presidency after 9/11 (2012), The Terror Presidency: Law and Judgment inside the Bush Administration (2009), Who Controls the Internet: Illusions of a Borderless World (with Tim Wu) (2006), and The Limits of International Law (with Eric Posner) (2005). He blogs on national security matters at the Lawfare blog,and on issues of labor law and policy at the On Labor blog.

Goldsmith is a fellow of the American Academy of Arts and Sciences. He holds a JD from Yale Law School, a BA and an MA from Oxford University, and a BA from Washington & Lee University. He clerked for Supreme Court justice Anthony M. Kennedy, Court of Appeals judge J. Harvie Wilkinson, and Judge George Aldrich on the Iran-US Claims Tribunal.

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Recent Commentary

The Supreme Court
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Justice Kennedy’s Retirement Leaves The Future Of U.S. Constitutional Law Entirely Up For Grabs

by Jack Goldsmithvia The Washington Post
Wednesday, June 27, 2018

Justice Anthony M. Kennedy’s retirement from the Supreme Court after more than 30 years of service is the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. For three decades, he has been a guiding force on the court’s most consequential decisions, conservative and liberal. His departure leaves the future of U.S. constitutional law entirely up for grabs.

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The Failure Of Internet Freedom

by Jack Goldsmithvia Knight First Amendment Institute
Thursday, June 14, 2018

From the second term of the Clinton administration to the end of the Obama administration, the U.S. government pursued an “internet freedom” agenda abroad. The phrase “internet freedom” signaled something grand and important, but its meaning has always been hard to pin down. For purposes of this paper, I will use the phrase to mean two related principles initially articulated by the Clinton administration during its stewardship of the global internet in the late 1990s.

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Mueller Won’t Decide Trump’s Fate, Only The American Public Can

by Jack Goldsmithvia Time
Thursday, June 7, 2018

“The President is to have the laws executed,” wrote the Chief Executive. “He may order an offence then to be prosecuted,” but if he “sees a prosecution put into a train which is not lawful, he may order it to be discontinued.”

Featured

Strengths Become Vulnerabilities: How A Digital World Disadvantages The United States In Its International Relations

by Jack Goldsmith, Stuart Russellvia Lawfare Blog
Wednesday, June 6, 2018

We have a new essay in the Hoover Aegis series called “Strengths Become Vulnerabilities: How a Digital World Disadvantages the United States in its International Relations.”  It seeks to explain why the United States is struggling to deal with the “soft” cyber operations that have been so prevalent in recent years: cyberespionage and cybertheft, often followed by strategic publication; information operations and propaganda; and relatively low-level cyber disruptions such as denial-of-service and ransomware attacks. 

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Strengths Become Vulnerabilities

by Jack Goldsmith, Stuart Russellvia Aegis Paper Series
Tuesday, June 5, 2018

This essay seeks to explain why the United States is struggling to deal with the “soft” cyberoperations that have been so prevalent in recent years: cyberespionage and cybertheft, often followed by strategic publication; information operations and propaganda; and relatively low-level cyber disruptions such as denial-of-service and ransomware attacks. The main explanation for the struggle is that constituent elements of U.S. society—a commitment to free speech, privacy, and the rule of law, innovative technology firms, relatively unregulated markets, and deep digital sophistication—create asymmetric weaknesses that foreign adversaries, especially authoritarian ones, can exploit. We do not claim that the disadvantages of digitalization for the United States outweigh the advantages, but we present reasons for pessimism.

Analysis and Commentary

OLC’s Meaningless 'National Interests' Test For The Legality Of Presidential Uses Of Force

by Jack Goldsmith, Curtis A. Bradleyvia Lawfare
Tuesday, June 5, 2018

The Justice Department’s Office of Legal Counsel (OLC) published a legal opinion May 31 that explained the basis for its oral advice in April that President Trump had the authority under Article II of the Constitution to direct airstrikes against Syria. 

Analysis and Commentary

A Smorgasbord Of Views On Self-Pardoning

by Jack Goldsmithvia Lawfare
Tuesday, June 5, 2018

"I have the absolute right to PARDON myself," tweeted President Trump, a few days ago. The president was presumably talking about a self-pardon for federal crimes already committed, not state crimes and not future crimes. Is he right? No president has ever tried to self-pardon and constitutional text does not speak overtly to the issue and there is no judicial precedent on point.

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The New OLC Opinion On Syria Brings Obama Legal Rationales Out Of The Shadows

by Jack Goldsmithvia Lawfare
Friday, June 1, 2018

There has been some heavy breathing in reaction to Steven Engel’s Office of Legal Counsel opinion released today in support of President Trump’s April 13, 2018 airstrikes in Syria. The opinion does indeed articulate an extraordinarily broad conception of the president’s authority to use military force abroad through air strikes without congressional authorization.

Analysis and Commentary

The Executive Branch's Extraordinarily Broad View Of The Presidential Pardon Power

by Maddie McMahon, Jack Goldsmithvia Lawfare
Thursday, May 31, 2018

Article II gives the president the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." There has long been speculation that President Trump may exercise this power to pardon some of the Russia investigation characters, including Michael Flynn, Paul Manafort, Michael Cohen, Jared Kushner, and possibly even himself.

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Managing Trump’s Demands

by Jack Goldsmithvia The Weekly Standard
Friday, May 25, 2018

President Trump’s norm-defying “demand” that the Justice Department “look into” whether it infiltrated or surveilled the Trump campaign “for Political Purposes” at the behest of the Obama administration threatens less damage to Justice Department independence than to larger executive branch prerogatives that any president other than Trump would want to protect.

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